POPLA refused my appeal - should I write back?

Le_Kirk

Excellent, that's the £60 contractual costs (whatever they are) that they are not allowed to claim and to which you refer as abuse of Process.

beamerguy

nuremburger06 wrote: »

£60 contractual terms pursuant to PCN t&c

Trouble with BWLegal is that the fake £60 IS NOT persuant to POFA2012 and the ruling of the Supreme Court and against The Consumer Rights Act 2015

BWLegal has wrongly interpreted the codes of practice of both ATA's who advise their members to break the law.

As both codes are not the law and are not regulated, the motorist cannot be bound by them
This is why BWLegal are getting spanked in court and why they lost their appeal in Southampton

nuremburger06

Morning all. Below is the final version of my defence. I've included all the recommended paras from the forum that apply (I hope!)

I have 2 queries, 1. At para 20, regarding the Debt Recovery Plus website words, should it be is or was? And 2. Do I need to print the defence to sign it in pen and scan it back to email, or can I type my name on the Word document as save it as pdf?

Would really appreciate it if someone could review my defence and a massive thanks to the guys who wrote the standard paras and shared them with the forum for all to use.

1. The Defendant was the registered keeper and driver of vehicle registration number on the material date. The Defendant denies the claim in its entirety, and submits that he is not liable to the Claimant for the sum claimed or any other amount.

2. The Particulars of Claim set out that the Claimant’s claim is for the sum of £106.28 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (“PCN”). Further, that the terms of the PCN allowed the Defendant 28 days from the date of issue to pay the PCN but the Defendant failed to do so.

3. Accordingly, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct

4. Due to the sparseness of the Particulars of Claim, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. In any case, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

7. The land which forms the basis of the claim consists of a retail and shopping complex and a large car park. Blackburn rail station is also located on this site and there is a shared entrance to the site from the main road.

8. On entering the site, there is a sign pointing towards the car park with a railway sign directly below. Underneath this there is another signing welcoming users to private land. It is not set out in clear terms which car park belongs to who. Additionally, the terms on the signage are also displayed in a font which is too small to be read from a passing vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

9. Further to the above, signage upon entry to the car park does not include sufficient detail regarding the terms and conditions, or when and where parking permits are not valid. In any case, the signage at the entrance is at best an invitation to treat. Therefore, no contract could be formed and any additional terms and conditions on further signage do not need to be accepted.

10. There are a number of signs displayed in the car park setting out the terms but none of these signs contain any information whatsoever that distinguishes between the land of the rail station car park and the ‘private land’ to which the current claim relates. Given this lack of clarity regarding how or where a rail station user with a parking permit is, or is not, allowed to park in this car park, no contract was ever agreed and no contract ever existed between the Defendant and the Claimant.

11. Ultimately, the Claimant failed to provide adequate signage specifically indicating any parking restrictions. The Defendant therefore submits that there can be no contractual agreement between the parties.

12. In earlier exchanges with the Defendant, the Claimant sought to rely on photographs of signage taken in June and July 2018. These photos stipulated a maximum stay period of 4 hours. The actual signage that was in place at the time of the alleged contravention stipulate a maximum stay time of 5 hours (photos from 16 March 2019 available on request).

13. This further reiterates the Defendant’s position that the signage the Claimant seeks to rely on is unclear and confusing. The Defendant submits therefore, that the signage is insufficient and that no contract can be formed with the landowner and all tickets are issued illegally.

Abuse of Process
14. The claim is made up of, amongst other ‘charges’, an additional £60 ‘contractual costs pursuant to PCN Terms and Conditions’.

15. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is allegedly owed by the Claimant. The Court may be interested to know that the Defendant received, from the Claimant, a ‘notice of pending County Court Judgement’ dated 13 January 2020.

16. In this letter the Claimants states that the Defendant has failed to respond with any proposals for payment or the reasons why the debt is disputed. This is not true. The Defendant has staunchly denied ever being liable to any sum to the Claimant and has stated this in several exchanges with the Claimant. The material fact is that the Claimant has chosen to ignore written submissions from the Defendant and resorted to scaremongering and numerous threatening demands for payment in an attempt to force the Defendant to pay.

17. This letter is a blatant attempt to compromise proceedings by stating that a judgement will be filed. At the time of receiving the letter the Defendant still had 7 days until the deadline to file a defence passed.
18. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

19. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

20. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

21. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

22. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'contractual costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
23. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

24. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. And at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

25. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

26. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...'' At para 193: ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' Para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
27. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the Claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

The Consumer Rights Act 2015 ('the CRA') is against this claim
28. Further, the purported added 'contractual costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

29. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

30. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

31. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

32. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

33. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

34. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

35. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

36. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

37. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

38. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

39. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

40. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

41. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

42. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

43. It is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. The Defendant denies breaching any of the Claimant’s purported contractual terms, whether express, implied, or by conduct.

44. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

Le_Kirk

Paragraph 20, I would leave as is written. It may have been true in the past "was" and it may be true when your case is heard "is" so you cannot know. You need to print and sign with a pen (a so-called wet signature) and scan it as a .pdf for e-mail purposes.

nuremburger06

Le_Kirk wrote: »

Paragraph 20, I would leave as is written. It may have been true in the past "was" and it may be true when your case is heard "is" so you cannot know. You need to print and sign with a pen (a so-called wet signature) and scan it as a .pdf for e-mail purposes.

Apart from that would you say it is ok? No worries if you haven't read it! :rotfl:

Le_Kirk

It looks like a standard defence with all the usual arguments such as signage and landowner authority plus your own particular rebuttal of the POC plus the abuse of process parts. Unless anybody else comments to the contrary I would say it is good to go. If I was being picky, I might suggest that you have gone to town on the signage aspect and the detail could have been left until the witness statement and evidence stage but it is in now.

1505grandad

A pedantic comment - "Judgment" has no middle "e" in this context - paras 15 & 17

nuremburger06

I'm hoping it gets thrown out at this stage for abuse of process!

nuremburger06

Ok, so I haven't got a printer/scanner and can't readily get to one. Reading the CPR part 7(10) which sets out: " Any provision of the CPR which requires a document to be signed by any person is satisfied by that person entering their name on an online form."

Does that mean a 'wet signature' is not required? Also see CPR 5.3 "5.3 Where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means."

KeithP

This is a parking forum.

I have suggested one way the obligation might be met.

If you want to explore other options can I respectfully suggest that that might be beyond the scope of this forum?

Maybe try LegalBeagles.